07 January 2012

President Obama's
appointments of Richard Cordray as head of the new Consumer Financial
Protection Bureau, and of three new members of the National Labor
Relations Board, are all unconstitutional.

Each of these jobs requires Senate
confirmation. The president's ability to fill them without that
confirmation, using his constitutional power to "fill up vacancies that
may happen during the recess of the Senate," depends upon there actually
being a recess. Both the House of Representatives and the Senate are
open for business. The new appointees can pocket their government
paychecks, but all their official acts will be void as a matter of law
and will likely be struck down by the courts in legal challenges that
are certain to come.

The Constitution's Framers assumed
that Congress would convene only part of each year, and that there would
be long stretches during which the Senate would be unavailable to play
its critical "advice and consent" role in the appointment of federal
officials. Their solution was to allow the president to make temporary,
"recess" appointments permitting the individuals chosen to serve for up
to two years, until the end of Congress's next session. This, it was
thought, would give the Senate time to act upon actual nominees for the
offices once it reconvened without leaving these—perhaps critical—posts
vacant for many months.

Presidents have used this authority
with alacrity, especially in recent times, as a means of putting a
favored nominee on the job even in the face of significant Senate
opposition. Historically, the president's lawyers have advised that this
is a constitutionally permissible exercise of his recess-appointment
power, so long as the Senate is actually in recess.

The Constitution does not define a
"recess," but in view of the original purpose of the recess-appointment
power, a senatorial absence of more than a few days has been considered a
necessary prerequisite. This is particularly the case because the
Constitution also provides (in Article 1, section 5, clause 4) that
neither house of Congress can "adjourn for more than three days" without
the other's consent—thus ensuring that the flow of legislative work
cannot be unilaterally interrupted. The Senate can hardly be in recess
in the absence of such an agreement—and there is none now.

In more
recent years, and especially during President George W. Bush's
administration, the Senate has attempted to limit recess appointments
even further by remaining "in session" on a pro forma basis. Whether
such sessions are inherently sufficient to defeat a presidential recess
appointment is debatable. However, in circumstances where the Senate is
not merely in session as a theoretical matter, but is actually
conducting business—albeit on the basis of agreements that measures can
and will be adopted by "unanimous consent" without an actual vote—there
can be no question that it is not in recess.

That is the situation today. The
traditional test, as articulated in a 1989 published opinion by the
Justice Department's own constitutional experts in the Office of Legal
Counsel, is "whether the adjournment of the Senate is of such duration
that the Senate could 'not receive communications from the President or
participate as a body in making appointments.'" Today's Senate, which is
controlled by the president's own party, is fully capable of performing
both functions in accordance with its rules. Indeed, the Senate is so
much in session that on Dec. 23—three days after beginning its pro forma
session—it passed President Obama's current highest legislative
priority: a two-month payroll tax holiday, which the president promptly
signed.

Mr. Obama is claiming an open-ended
authority to determine that the Senate is in recess, despite that body's
own judgment and the factual realities. That is an astonishing and, so
far as we can tell, unprecedented power grab.

It is not up to the president to
decide whether the Senate is organized properly or working hard enough.
However much the supposedly power-hungry President George W. Bush may
have resented the Senate's practice of staying "in session" to defeat
his recess-appointment power, he nevertheless respected the Senate's
judgment on the point.

The president has done his new
appointees and the public no favors. Both the National Labor Relations
Board (NLRB) and the Consumer Financial Protection Bureau are regulatory
agencies with profound real-world impact. Those individuals and
businesses subject to regulations and rulings adopted during the tenure
of Mr. Obama's recess appointees can challenge the legality of those
measures in the courts, and they will very likely succeed.

Only two years ago in New Process Steel v. NLRB,
the Supreme Court undercut hundreds of NLRB decisions by ruling that
the board had not lawfully organized itself after the terms of two
recess appointee members expired, leaving it without a quorum. Similar
issues will arise when both the new financial bureau and the NLRB begin
to act with members whose appointments are constitutionally
insupportable.

The fact that the president has
apparently triggered the constitutional crisis without really expecting
to produce any lasting policy impact, and for no better reason than to
bolster his claim of running against a "do-nothing" Congress (the key
part of his re-election campaign), makes his behavior all the more
reprehensible.

Messrs. Rivkin and Casey are Washington, D.C.,
lawyers who served in the Justice Department during the Reagan and
George H.W. Bush administrations. Mr. Rivkin is also a senior adviser to
the Foundation for Defense of Democracies.

By Jonathan Turley, Progressive, Constitutional Law Professor, George Mason University School of Law

The recess appointment of Richard Cordray has produced what appears
to be the intended political response. The White House wanted to
highlight the GOP blocking not just the head of the Consumer Financial
Protection Bureau and three members of the National Labor Relations
Board. Over the last few days I have been called by various media
outfits for a supporting view of the recess appointment of Cordray.
However, I do not support the appointments and believe they raise
serious constitutional problems.

The Cordray controversy, however, combines the controversial use of
filibustering with the controversial practice of recess appointments — a
perfect storm of dysfunctional actions by both parties. I was highly
critical of recess appointments during the Bush administration. These
appointments, particularly of judges, circumvents the constitutional
process and represents an unchecked power with limited textual support
in the constitution. This case in particular is a clear effort to deny
the Senate its authority to share the power of appointment of
high-ranking officials. It has nothing to do with the merits. I like
Cordray, but circumventing the Constitution is no solution to a
political stalemate.

Recess appointments do have support in the Constitution. Article II, Section 2 of the U.S. Constitution states:

The President shall have Power to fill up all Vacancies
that may happen during the Recess of the Senate, by granting
Commissions which shall expire at the End of their next Session.

The power, however, is ill-defined and there has long been a debate
over its scope. When this clause was first put into effect, it was
common for recesses to last six or even nine months at a time. That made
such appointments a practice necessity. In modern times, it has been
used openly to circumvent opposition in Congress — something that was
not the intention of the Framers in my view. Bush uses the power to
appoint John Bolton — circumventing well-reasoned objections to his
appointment to the United Nations. However, Democrats have to stop
citing the Republicans as precedent when they vehemently objected to the
same practices. If it was wrong then, it is wrong now. Indeed, the
brief length of this “recess” makes this a particularly wrong-headed
move.

The long practice of judicial appointments is particularly obnoxious
in my view. In 2000, Bill Clinton gave Roger L. Gregory a recess
appointment to the Fourth Circuit. (He was later renominated Gregory and
secured confirmation). In 2004, Bush recess appointed Charles W.
Pickering to the U.S. Court of Appeals for the Fifth Circuit and William
H. Pryor to the Eleventh Circuit Court of Appeals. I have long argued
that the Senate should adopt a rule that it would vote against the later
confirmation of any judge given such a recess appointment on principle.
Citizens are entitled to the guarantee of a federal judge confirmed by
the Senate and given life tenure.

The dangers of such appointments is made evident by George
Washington’s appointment of South Carolina judge John Rutledge as Chief
Justice of the United States during a congressional recess in 1795. I
have previously written about Rutledge — a man who was demonstrably deranged, later rejected by the Senate, and attempted suicide.

The Justice’s Office of Legal Counsel in 1989 indicated that
presidents cannot make recess appointments during Senate breaks of less
than three days — a long-standing guiding principle. For that reason,
Congress decided not to break for more than three days this year — a
decision clearly within the power of members. In this case, the House
refused to consent to the Senate adjourning for more than three days,
which is its perogative under the Constitution. Neither house can
adjourn without the consent of the other under Article I, Section 5.

Once again, I believe Democrats are blinded by the immediate
political controversy and not considering the long-term implications of
such appointments. Previously, some of these same members (including
Senate Majority Leader Harry Reid (D-Nev.)) used precisely this power to
block recess appointments by President Bush.

While this pro forma session may seem like dirty pool, it is clearly
constitutional. Moreover, it was not entirely pro forma since three
days after into the session, Congress passed the President’s demand for a
two-month payroll tax holiday.

The Framers laid out a detailed process for the appointment and
confirmation of officials as a shared power of both the legislative and
executive branches. It has rarely been a smooth relationship — shared
power often produce tensions whether between siblings in a family or
sister branches in a tripartite government. The framers understood and
expected such tensions. They used the rivaling interests of the
branches to serve as checks and balances. The Administration does not
like the fact that the Senate is withholding its consent. However, that
is like complaining about the weather. You can rage at the rain or
find shelter in our system through compromise.

There is a good chance that a federal court would again avoid such a
constitutional challenge by saying that it is a matter for the political
branches to work out. Courts have increasingly avoided their
responsibility to answer such questions by deferring to the political
process when this practice undermines the political process established
by the Framers. What is clear is that the President has a recess
appointment power and the question is whether there is truly an implied
period after which this power may be constitutionally used. That is a
difficult question given the ambiguity of the text. However, it is not a
close question in terms of the dysfunctional role played by this
practice, in my view. It is not something that should be applauded
merely because it puts the opposing party in a tough position or fits
with a campaign theme.

It seems that this is a good fight to have politically for the White
House and certainly it highlights a wedge issue with the GOP. However,
it is not good for the Constitution or, in the long run, the country.

“I refuse to take ‘No’ for an answer,”
said President Obama this week as he claimed new powers for himself in
making recess appointments while Congress wasn’t legally in recess. The
chief executive’s power grab in naming appointees to the Consumer
Financial Protection Bureau and the National Labor Relations Board has
been depicted by administration supporters as one forced upon a
reluctant Obama by Republican intransigence. But this isn’t the first
example of the president’s increasing tendency to govern with
executive-branch powers. He has already explained that “where Congress
is not willing to act, we’re going to go ahead and do it ourselves.” On a
variety of issues, from immigration to the environment to labor law,
that’s just what he’s been doing—and he may try it even more boldly
should he win reelection.

This “go it alone” philosophy reflects an
authoritarian trend emerging on the political left since the
conservative triumph in the 2010 elections.

The president and his coterie could have responded to the 2010
elections by conceding the widespread public hostility to excessive
government spending and regulation. That’s what the more clued-in
Clintonites did after their 1994 midterm defeats. But unlike Clinton,
who came from the party’s moderate wing and hailed from the rural South,
the highly urban progressive rump that is Obama’s true base of support
has little appreciation for suburban or rural Democrats. In fact, some
liberals even celebrated the 2010 demise of the Blue Dog and Plains
States Democrats, concluding that the purged party could embrace a purer
version of the liberal agenda. So instead of appealing to the middle,
the White House has pressed ahead with Keynesian spending and a
progressive regulatory agenda.

Much of the administration’s approach has to do with a change in the
nature of liberal politics. Today’s progressives cannot be viewed
primarily as pragmatic Truman- or Clinton-style majoritarians. Rather,
they resemble the medieval clerical class. Their goal is governmental
control over everything from what sort of climate science is permissible
to how we choose to live our lives. Many of today’s progressives can be
as dogmatic in their beliefs as the most strident evangelical minister
or mullah. Like Al Gore declaring the debate over climate change closed,
despite the Climategate e-mails and widespread skepticism, the clerisy
takes its beliefs as based on absolute truth. Critics lie beyond the pale.

The problem for the clerisy lies in political reality. The country’s
largely suburban and increasingly Southern electorate does not see big
government as its friend or wise liberal mandarins as the source of its
salvation. This sets up a potential political crisis between those who
know what’s good and a presumptively ignorant majority. Obama is
burdened, says Joe Klein of Time, by governing a “nation of
dodos” that is “too dumb to thrive,” as the title of his story puts it,
without the guidance of our president. But if the people are too deluded
to cooperate, elements in the progressive tradition have a solution:
European-style governance by a largely unelected bureaucratic class.

The tension between self-government and “good” government has existed
since the origins of modern liberalism. Thinkers such as Herbert Croly
and Randolph Bourne staked a claim to a priestly wisdom far greater than
that possessed by the ordinary mortal. As Croly explained, “any
increase in centralized power and responsibility . . . is injurious to
certain aspects of traditional American democracy. But the fault in that
case lies with the democratic tradition” and the fact that “the average
American individual is morally and intellectually inadequate to a
serious and consistent conception of his responsibilities as a
democrat.”

During the first two years of the Obama administration, the
progressives persuaded themselves that favorable demographics and the
consequences of the George W. Bush years would assure the consent of the
electorate. They drew parallels with how growing urbanization and
Herbert Hoover’s legacy worked for FDR in the 1930s. But FDR enhanced
his majority in his first midterm election in 1934; the current
progressive agenda, by contrast, was roundly thrashed in 2010. Obama may
compare himself to Roosevelt and even to Lincoln, but the electorate
does not appear to share this assessment.

After the 2010 thrashing, progressives seemed uninterested in
moderating their agenda. Left-wing standard bearers Katrina vanden
Heuvel of The Nation and Robert Borosage of the Institute for
Policy Studies went so far as to argue that Obama should bypass Congress
whenever necessary and govern using his executive authority over the
government’s regulatory agencies. This autocratic agenda of enhanced
executive authority has strong support with people close to White House,
such as John Podesta of the Center for American Progress, a
left-liberal think tank. “The U.S. Constitution and the laws of our
nation grant the president significant authority to make and implement
policy,” Podesta has written. “These authorities can be used to ensure
positive progress on many of the key issues facing the country.”

Podesta has proposed what amounts to a national, more ideological
variant of what in Obama’s home state is known as “The Chicago Way.”
Under that system, John Kass of the Chicago Tribune explains,
“citizens, even Republicans, are expected to take what big government
gives them. If the political boss suggests that you purchase some
expensive wrought-iron fence to decorate your corporate headquarters,
and the guy selling insurance to the wrought-iron boys is the boss’
little brother, you write the check.” But the American clerisy isn’t
merely a bunch of corrupt politicians and bureaucratic lifers, and the
United States isn’t one-party Chicago. The clerisy are more like an
ideological vanguard, one based largely in academe and the media as well
as part of the high-tech community.

Their authoritarian progressivism—at odds with the democratic,
pluralistic traditions within liberalism—tends to evoke science, however
contested, to justify its authority. The progressives themselves are,
in Daniel Bell’s telling phrase, “the priests of the machine.”

Their
views are fairly uniform and can be seen in “progressive legal theory,”
which displaces the seeming plain meaning of the Constitution with
constructions derived from the perceived needs of a changing political
environment. Belief in affirmative action, environmental justice,
health-care reform, and redistribution from the middle class to the poor
all find foundation there. More important still is a radical
environmental agenda fervently committed to the idea that climate change
has a human origin—a kind of secular notion of original sin. But these
ideas are not widely shared by most people. The clerisy may see in Obama
“reason incarnate,” as George Packer of The New Yorker put it,
but the majority of the population remains more concerned about
long-term unemployment and a struggling economy than about rising sea
levels or the need to maintain racial quotas.

Despite the president’s clear political weaknesses—his job-approval
ratings remain below 50 percent—he retains a reasonable shot at
reelection. In the coming months, he will likely avoid pushing too hard
on such things as overregulating business, particularly on the
environmental front, which would undermine the nascent recovery and stir
too much opposition from corporate donors. American voters may also be
less than enthusiastic about the Republican alternatives topping the
ticket. And one should never underestimate the power of even a
less-than-popular president. Obama can count on a strong chorus of
support from the media and many of the top high-tech firms, which have
enjoyed lavish subsidies and government loans for “green” projects.

If Obama does win, 2013 could possibly bring something approaching a
constitutional crisis. With the House and perhaps the Senate in
Republican hands, Obama’s clerisy may be tempted to use the full range
of executive power. The logic for running the country from the executive
has been laid out already. Republican control of just the House, argues
Chicago congressman Jesse Jackson, Jr., has made America ungovernable.
Obama, he said during the fight over the debt limit, needed to bypass
the Constitution because, as in 1861, the South (in this case, the
Southern Republicans) was “in a state of rebellion” against lawful
authority. Beverley Perdue, the Democratic governor of North Carolina,
concurred: she wanted to have elections suspended for a stretch.
(Perdue’s office later insisted this was a joke, but most jokes aren’t
told deadpan or punctuated with “I really hope someone can agree with me
on that.” Also: Nobody laughed.)

The Left’s growing support for a soft authoritarianism is reminiscent
of the 1930s, when many on both right and left looked favorably at
either Stalin’s Soviet experiment or its fascist and National Socialist
rivals. Tom Friedman of the New York Times recently praised
Chinese-style authoritarianism for advancing the green agenda. The
“reasonably enlightened group” running China, he asserted, was superior
to our messy democracy in such things as subsidizing green industry.
Steven Rattner, the investment banker and former Obama car czar,
dismisses the problems posed by China’s economic and environmental
foibles and declares himself “staunchly optimistic” about the future of
that country’s Communist Party dictatorship. And it’s not just the
gentry liberals identifying China as their model: labor leader Andy
Stern, formerly the president of the Service Employees International
Union and a close ally of the White House, celebrates Chinese
authoritarianism and says that our capitalistic pluralism is headed for
“the trash heap of history.” The Chinese, Stern argues, get things done.

A victorious Obama administration could embrace a soft version of the
Chinese model. The mechanisms of control already exist. The
bureaucratic apparatus, the array of policy czars and regulatory
enforcers commissioned by the executive branch, has grown dramatically
under Obama. Their ability to control and prosecute people for
violations relating to issues like labor and the environment—once
largely the province of states and localities—can be further enhanced.
In the post-election environment, the president, using agencies like the
EPA, could successfully strangle whole industries—notably the
burgeoning oil and natural gas sector—and drag whole regions into
recession. The newly announced EPA rules on extremely small levels of
mercury and other toxins, for example, will sharply raise electricity
rates in much of the country, particularly in the industrial heartland;
greenhouse-gas policy, including, perhaps, an administratively imposed
“cap and trade,” would greatly impact entrepreneurs and new investors
forced to purchase credits from existing polluters. On a host of social
issues, the new progressive regime could employ the Justice Department
to impose national rulings well out of sync with local sentiments.
Expansions of affirmative action, gay rights, and abortion rights could
become mandated from Washington even in areas, such as the South, where
such views are anathema.

This future can already been seen in fiscally challenged California.
The state should be leading a recovery, not lagging behind the rest of
the country. But in a place where Obama-style progressives rule without
effective opposition, the clerisy has already enacted a score of
regulatory mandates that are chasing businesses, particularly in
manufacturing, out of the state. It has also passed land-use policies
designed to enforce density, in effect eliminating the dream of
single-family homes for all but the very rich in much of the state.

A nightmare scenario would be a constitutional crisis pitting a
relentless executive power against a disgruntled, alienated opposition
lacking strong, intelligent leadership. Over time, the new
authoritarians would elicit even more opposition from the “dodos” who
make up the majority of Americans residing in the great landmass outside
the coastal strips and Chicago. The legacy of the Obama years—once so
breathlessly associated with hope and reconciliation—may instead be
growing pessimism and polarization.

Fred Siegel, a contributing editor of City Journal, is scholar in residence at St. Francis College in Brooklyn. Joel Kotkin is a contributing editor of City Journal and theDistinguished Presidential Fellow in Urban Futures at Chapman University.

President Obama has fulfilled a second Tom Friedman fantasy — the first being that he is, in fact, President Obama. “I have fantasized . . . that, what if we could just be China for a day,” the New York Times star columnist gushed for his ponderous fellow travelers on Meet the Press. “I mean where we could actually, you know, authorize the right solutions.”

It was May 2010, not long after Obama and a Congress dominated by
Democrats had rammed through Obamacare, the most sweeping government
usurpation of private industry and individual liberty in American
history. Soon they’d be adding Dodd-Frank’s paralyzing intrusion into
the financial sector. Yet, despite the shock and awe of hope and change,
here was the Progressive
Poobah, grousing that “my democracy” was failing “to work with the same
authority, focus and stick-to-itiveness” as a totalitarian Communist
dictatorship. After all, unburdened by our remnants of free-market
competition, by the gridlock and sausage-making of two-party politics,
the Chicoms produce trade and budget surpluses, state-of-the-art
airports, and enviro-friendly high-speed rail. All we can manage, “on
everything from the economy to environment,” Friedman complained, are
“suboptimal solutions” — apparently not to be confused with the optimal
Chinese menu of forced abortions, religious repression, secret police,
kangaroo courts, and air you could cut with a chopstick.

Friedman is surely smiling today. So, we can assume, are other
leftists, such as Peter Orszag, Obama’s former budget-overrun director,
and Bev Perdue, the governor of North Carolina. Right after the midterm
shellacking that swept Republicans into control of the House — a
roadblock that has stymied some, but by no means all, of Obama’s
transformational agenda — they said aloud what other Democrats were
thinking: America’s problem is too much democracy. This week, the
president solved that problem, shoving another page of the suboptimal
Constitution through his made-in-China shredder.

In sum, Obama dissolved the separation of powers, the framers’
ingenious bulwark against any government branch’s seizure of supreme
power — and thus the Constitution’s bulwark against tyranny. The
president claims the power to appoint federal officers without the
Senate’s constitutionally mandated advice and consent. He does so by
claiming unilateral powers to dictate when the Senate
is in session, a power the Constitution assigns to Congress, and to
decree that an ongoing session is actually a recess. This sheer ukase,
he says, triggers the part of the Constitution we’re keeping because he
likes it — viz., the executive power to fill vacancies without any
vetting by the people’s representatives.

Mind you, a president is the only government official
constitutionally required to swear that he will “preserve, protect and
defend” that Constitution. We are talking here not just about Obama’s
characteristically breathtaking arrogance. These are profound violations
of his oath and of our fundamental law. But rest assured he will get
away with them. For that, Republicans can thank themselves and their
surrender to statism.

Obama is hot to move forward on two fronts. The first is the Consumer Financial Protection Bureau.
The CFPB is the monstrous Dodd-Frank’s crown jewel. Congress
unconstitutionally delegated to it virtually unreviewable power to
“dictate credit allocation in the U.S. economy,” as C. Boyden Gray put it.
Not just bank lending — the law invests dictatorial power in a single
CFPB director over thousands of American businesses. The CFPB is not
just part of Obama’s design to splay the government’s tentacles
throughout the private economy; it is also key to his reelection
narrative: Leviathan, no longer shyly creeping but heroically
swashbuckling through predatory capitalists to rescue the noble “99
percent.”

By law, however, the CFPB cannot operate until its director has been
confirmed. Before the midterms, Senate Republicans lacked the votes
necessary to stop the CFPB from being enacted, but they now have the
numbers needed to block confirmations — or, in this instance, to extract
concessions in exchange for confirmations. In our constitutional
republic, this is what is known as politics. That is not a
dirty word. Indeed, it is the very horse-trading that leftists and their
media cheerleaders indignantly demand to be afforded even when they
don’t have the numbers to force their opposition’s hand.

So Republicans have declined to confirm Obama’s nominee, Richard Cordray
(Ohio’s former attorney general, beloved of the trial lawyers). But
being Republicans, they are not, of course, demanding repeal of this
despotic CFPB coup — just as they have no real desire to slash any of
the bulging administrative behemoth. Yes, they talk about slashing it,
but what they actually want is to control it. So their bold pitch is
to make the CFPB marginally more accountable and, as night follows day,
bigger: to subject it to Congress’s appropriations process (as if that
will give the public a real say in how it operates); to have bank
regulators check its likely excesses (playing into Obama’s narrative
about protecting Wall Street at the expense of Main Street); and to
expand its leadership to several board members rather than a single
unelected technocrat (because creating more patronage slots has been so
effective in reining in the EPA and the rest of the bureaucratic maze).

Because the GOP establishment is statist lite, they play into the president’s hands.
Removing the Dodd-Frank deadweight from a crippled economy, killing an
authoritarian bureaucracy in the cradle — that is the kind of
campaign that would have stoked passion, highlighting a very different
vision of a country breaking free of its regulatory chains. But no one
is going to get whipped up over a few technical tweaks on the one-way
road to bigger Big Government. Obama has a simple story to tell:
“Obstructionist Republicans are trying to stop me from saving you.” By
comparison, Republican story — “We’re all for statist cures, just with a Washington-style nip here and tuck there” — makes your eyes glaze over.

The president thus saw his opening to ride roughshod over the
Constitution’s requirements that the Senate give its assent before top
appointees wield power, and that this approval can be dispensed with
only when the Senate is in a recess. Far from shaping the battlefield
for a fight over first principles, Republicans have fallen all over
themselves to praise Cordray’s qualifications. They’ve made certain
everyone knows they have no problem with the concept of a CFPB.
Congress, moreover, has been in a de facto adjournment for
weeks. To be sure, the gimmick by which the session has been kept
technically alive — a senator opening the record for a few seconds every
couple of days but not doing any real business — is not only
constitutionally viable (indeed, Obama’s own Justice Department endorsed it before the Supreme Court a year ago). The ruse was actually designed by Democrats and endorsed by then-senator Barack Obama for the specific purpose of barring recess appointments — by a Republican president.

Our community-organizer-in-chief understands the uses of lawlessness
(known in the biz as “direct action”). Republicans have implicitly
endorsed his CFPB and his nominee. With that, and with the media
spinning the story his way, Obama is not a law-breaker but the
courageous crusader for the little guy; Republicans are not liberty’s
vanguard but the petty obstructers of progress.

The president’s second front is, as ever, Big Labor. He also used his
supposed recess power to appoint three members to the National Labor
Relations Board. This will ensure that the NLRB will not lack for the
necessary quorum to do the bidding of union bosses who, in turn, keep
the campaign cash
and direct-action services churning for the Democratic party. Obama was
even more audacious on the NLRB appointees than on Cordray: He
submitted two of the three names to the Senate on December 15, right on
the eve of the recess that wasn’t a recess. There is not even a fig leaf
of GOP obstructionism to complain about — the Senate was given no
realistic opportunity to do background checks or hold committee
hearings, much less hold an informed confirmation vote.

Again, however, Republicans have not even attempted to sound the
alarm for folding up the NLRB, even after its unelected bureaucrats
outrageously presumed to begin telling private businesses, like Boeing,
where they would and would not be permitted to operate. The GOP is not
making the overarching case for getting Americans out from under the
statist thumb; they are saying they would apply the same thumb more
benignly — by slow-walking enough confirmations, they figure the 2012
election will mean vacancies filled by Republican-preferred bureaucrats.

That is to say, the GOP
has already surrendered on the greater constitutional transgression:
the transfer of power from the people to the administrative state. To
take another example, remember the Independent Payment Advisory Board?
Like CFPB birthed by Dodd-Frank, the IPAB is an unaccountable,
authoritarian panel created by Obamacare. It will ration health care
through price controls. As Stanley Kurtz recounted in National Review,
when the democracy-dissing Orszag was still working for Obama, he
crowed that the IPAB is “the largest yielding of sovereignty from the
Congress since the creation of the Federal Reserve.” That is supposed to
cheer us, since Congress has lower ratings than Keith Olbermann. But
Orszag was wrong: Congress is not the sovereign; you are. It’s
your control over your life that your representatives are yielding to
cadres of “expert” technocrats at the IPAB, the CFPB, the NLRB, and the
rest of the faceless bureaucracy that bends inevitably to the statists
who create and sustain them — a bureaucracy that coerces our besieged
private sector to shift trillions of dollars from the production of
value to compliance costs.

Republicans have accommodated themselves to that gross distortion
of constitutional governance. Realizing this, President Obama calculates
that the GOP will have little difficulty swallowing this latest, lesser
indignity: He no longer deigns to consult them on the staffing of a
sprawling, suffocating bureaucracy over whose control they’ve already
abdicated. He has taken their measure. He knows that, after a few days
of huffing, puffing, and reading the editorial pages, they’ll shrug
their shoulders and move on — mumbling some drivel about how they only
control one-half of one-third of the government (that would be the
one-half of one-third without whose approval the beast could not be
funded).

GOP frontrunner Mitt Romney’s biggest applause line is his promise to
reverse Obamacare by executive proclamation: He’d unilaterally issue
“waivers,” purportedly relieving states from compliance with congressional
statutes — just as Obama has assumed the power to decide which
businesses have to comply. That this is implausible — that it does
nothing to repeal the law or stem the legally mandated flow of funds to
Obamacare’s gigantic bureaucratic infrastructure — is a point for
another day. For now, the point is that Congress is increasingly
irrelevant; the Constitution for a self-determining people is
increasingly irrelevant. Neither party seems to have much of a problem
with that. All that matters is who gets to wield executive power and
staff the administrative state. We’re becoming Tom Friedman’s fantasy —
and we’re apt to find it suboptimal.

Lest you doubt that we're headed for the most vicious election year
in memory, consider the determined effort, within 10 minutes of his
triumph in Iowa, to weirdify Rick Santorum. Discussing the surging
senator on Fox News, Alan Colmes mused on some of the "crazy things"
he's said and done.

Santorum has certainly said and done many crazy things, as have most
members of America's political class, but the "crazy thing" Colmes chose
to focus on was Santorum's "taking his two-hour-old baby when it died
right after childbirth home," whereupon he "played with it." My National
Review colleague Rich Lowry rightly slapped down Alan on air, and
Colmes subsequently apologized, though not before Mrs. Santorum had been
reduced to tears by his remarks. Undeterred, Eugene Robinson, the
Pulitzer Prize-winning Washington Post columnist, doubled down on stupid
and insisted that Deadbabygate demonstrated how Santorum is "not a
little weird, he's really weird."

Republican
presidential candidate, former Pennsylvania Sen. Rick Santorum,
surrounded by his children, embraces his wife, Karen, as he enters his
victory party Tuesday, 3 January 2012, in Johnston, Iowa.

The short life of Gabriel Santorum would seem a curious priority for
political discourse at a time when the Brokest Nation in History is
hurtling toward its rendezvous with destiny. But needs must, and victory
by any means necessary. In 2008, the Left gleefully mocked Sarah
Palin's live baby. It was only a matter of time before they moved on to a
dead one.
Not many of us will ever know what it's like to have a child who
lives only a few hours. That alone should occasion a certain modesty
about presuming to know what are "weird" and unweird reactions to such
an event.

In 1996, the Santorums were told during the pregnancy that their baby
had a fatal birth defect and would not survive more than a few hours
outside the womb. So Gabriel was born, his parents bundled him, and held
him, and baptized him. And two hours later he died. They decided to
take his body back to the home he would never know. Weirdly enough, this
crazy weird behavior is in line with the advice of the American
Pregnancy Association, which says that "it is important for your family
members to spend time with the baby" and "help them come to terms with
their loss."

Would I do it? Dunno. Hope I never have to find out. Many years ago, a
friend of mine discovered in the final hours of labor that her child
was dead but that she would still have to deliver him. I went round to
visit her shortly after, not relishing the prospect but feeling that it
was one of those things one was bound to do. I ditched the baby gift I'd
bought a few days earlier but kept the flowers and chocolate. My friend
had photographs of the dead newborn. What do you say? Oh, he's got your
face?

I was a callow pup in my early twenties, with no paternal instincts
and no great empathetic capacity. But I understood that I was in the
presence of someone who had undergone a profound and harrowing
experience, one which it would be insanely arrogant for those of us not
so ill-starred to judge.

There but for the grace of God go I, as we used to say.

There is something telling about what Peter Wehner at Commentary
rightly called the "casual cruelty" of Eugene Robinson. The Left
endlessly trumpets its "empathy." President Obama, for example, has said
that what he looks for in his judges is "the depth and breadth of one's
empathy." As he told his pro-abortion pals at Planned Parenthood, "we
need somebody who's got the heart – the empathy – to recognize what it's
like to be a young teenage mom." Empathy, empathy, empathy: You barely
heard the word outside clinical circles until the liberals decided it
was one of those accessories no self-proclaimed caring progressive
should be without.

Indeed, flaunting their empathy is what got Eugene Robinson and many
others their Pulitzers – Robinson describes his newspaper column as "a
license to feel." Yet he's entirely incapable of imagining how it must
feel for a parent to experience within the same day both new life and
death – or even to understand that the inability to imagine being in
that situation ought to prompt a little circumspection.

The Left's much-vaunted powers of empathy routinely fail when
confronted by those who do not agree with them politically. Rick
Santorum's conservatism is not particularly to my taste (alas, for us
genuine right-wing crazies, it's that kind of year), and I can well see
why fair-minded people would have differences with him on a host of
issues from spending to homosexuality. But you could have said the same
thing four years ago about Sarah Palin – and instead the Left,
especially the so-called feminist Left, found it easier to mock her
gleefully for the soi-disant retard kid and her fecundity in general.
The usual rap against the Right is that they're hypocrites – they vote
for the Defense of Marriage Act, and next thing you know they're playing
footsie across the stall divider with an undercover cop at the airport
men's room. But Rick Santorum lives his values, and that seems to bother
the Left even more.

Never mind the dead kid, he has six living kids. How crazy freaky weird is that?

This crazy freaky weird: all those self-evidently ludicrous
risible surplus members of the Santorum litter are going to be paying
the Social Security and Medicare of all you normal well-adjusted Boomer
yuppies who had one designer kid at 39. So, if it helps make it easier
to "empathize," look on them as sacrificial virgins to hurl into the
bottomless pit of Big Government debt.

Two weeks ago I wrote in this space: "A nation, a society, a
community is a compact between past, present and future." Whatever my
disagreements with Santorum on his "compassionate conservatism," he gets
that. He understands that our fiscal bankruptcy is a symptom rather
than the cause.

The real wickedness of Big Government is that it debauches not merely
a nation's finances but, ultimately, its human capital – or, as he puts
it, you cannot have a strong economy without strong families.

Santorum's respect for all life, including even the smallest bleakest
meanest two-hour life, speaks well for him, especially in comparison
with his fellow Pennsylvanian, the accused mass murderer Kermit Gosnell,
an industrial-scale abortionist at a Philadelphia charnel house who
plunged scissors into the spinal cords of healthy delivered babies. Few
of Gosnell's employees seemed to find anything "weird" about that:
Indeed, they helped him out by tossing their remains in jars and bags
piled up in freezers and cupboards. Much less crazy than taking 'em home
and holding a funeral, right?

Albeit less dramatically than "Doctor" Gosnell, much of the developed
world has ruptured the compact between past, present and future. A
spendthrift life of self-gratification is one thing. A spendthrift life
paid for by burdening insufficient numbers of children and grandchildren
with crippling debt they can never pay off is utterly contemptible. And
to too many of America's politico-media establishment it's not in the
least bit "weird."

06 January 2012

For the first time since the end of World War II, classic anti-Semitic tropes –
“the Jews” control the world and are to blame for everything that goes wrong,
including the financial crisis; “The Jews killed Christian children in order to
use the blood to bake matza; the Holocaust never happened – are becoming
acceptable and legitimate subjects for academic and political
discussion.

To understand why these absurd and reprehensible views, once
reserved for the racist fringes of academia and politics, are moving closer to
the mainstream, consider the attitudes of two men, one an academic, the other a
politician, toward those who express or endorse such bigotry. The academic is
Prof. Brian Leiter. The politician is Ron Paul.

You’ve probably
never heard of Leiter. He’s a relatively obscure professor of jurisprudence, who
is trying to elevate his profile by publishing a gossipy blog about law school
professors. He is a colleague of John Mearsheimer, a prominent and world famous
professor at the University of Chicago.

Several months ago Mearsheimer
enthusiastically endorsed a book, really a pamphlet, that included all the
classic anti-Semitic tropes.

It was titled The Wandering Who and written
by Gilad Atzmon, a British version of Louisiana’s David Duke, who plays the
saxophone and has no academic connections. Atzmon writes that we must take “very
seriously” the claim that “the Jewish people are trying to control the
world.”

He calls the recent credit crunch “the Zio punch.” He says “the
Holocaust narrative” doesn’t make “historical sense” and expresses doubt that
Auschwitz was a death camp. He invites students to accept the “accusations of
Jews making matza out of young goyim’s blood.”

Books and pamphlets of
this sort are written every day by obscure anti-Semites and published by
disreputable presses that specialize in this kind of garbage.

No one ever
takes notice, except for neo-Nazis around the world who welcome any additions to
the literature of hate. What is remarkable about the publication of this hateful
piece of anti-Semitic trash, is that it was enthusiastically endorsed by two
prominent American professors, John Mearsheimer and Richard Falk, who urged
readers, including students, to read, “reflect upon” and “discuss widely” the
themes of Atzmon’s book.

Never before has any such book received the
imprimatur of such established academics. I was not shocked by these
endorsements, because I knew that both of these academics had previously crossed
red lines, separating legitimate criticism of Israel from subtle
anti-Semitism.

Mearsheimer has accused American Jews of dual loyalty, and
Falk has repeatedly compared Israel to Nazi Germany. Both were so enthusiastic
about Atzmon’s anti-Zionism – he has written that Israel is “worse” than the
Nazis – that they were prepared to give him a pass on his classic blood libel
anti-Semitism and Holocaust denial. No great surprise there.

What
was surprising – indeed shocking – was the fact that Mearsheimer’s relatively
apolitical colleague, Brian Leiter, rushed to Mearsheimer’s defense. Without
bothering to read Atzmon’s book, Leiter pronounced that Atzmon’s “positions [do
not mark him] as an anti-Semite [but rather as] cosmopolitan.”

Leiter
also certified that Atzmon “does not deny the Holocaust or the gas
chambers.”

Had Leiter read the book, he could not have made either
statement.

Atzmon himself credits “a man who... was an anti-Semite” for
“many of [his] insights” and calls himself a “self-hating Jew” who has contempt
for “the Jew in me.”

If that’s not an admission of anti-Semitism, rather
than “cosmopolitanism,” I don’t know what is. As far as the Holocaust is
concerned, Atzmon asserts that it is not “an historical narrative.”

And
as for the gas chambers, he doubts that the “Nazis ran a death factory in
Auschwitz- Birkanau.”

Leiter went so far as to condemn those who dared to
criticize Mearsheimer for endorsing Atzmon’s book, calling their criticism
“hysterical” and not “advance[ing] honest intellectual discourse.” And he
defended Mearsheimer’s endorsement as “straight forward.”

The Brian
Leiters of the world are an important part of the reason why anti-Semitic tropes
are creeping back to legitimacy in academia.

His knee-jerk defense of an
admitted Jew-hater – who, according to Leiter is not a despicable anti-Semite but
an acceptable “cosmopolitan” – contributes to the legitimization of
anti-Semitism.

The same can be said of Ron Paul, whom everyone has heard
of.

Paul has, according to The New York Times, refused to “disavow” the
“support” of “white supremacists, survivalists and anti-Zionists who have
rallied behind his candidacy.”

(These “anti-Zionists” believe that
“Zionists” – Jews – control the world, were responsible for the 1995 bombing of
the Oklahoma City federal building, and caused the economic downturn, because
“most of the leaders involved in the federal and international banking system
are Jews.”) He allowed his “Ron Paul survival report” to espouse David Duke-type
racism and anti-Semitism for years during the 1990s, claiming he was unaware
that they were being promoted under his name.

Edward H. Crane, the
founder of the libertarian CATO Institute, has said, “I wish Ron would condemn
those fringe things that float around” his campaign, but he refuses to reject
the support of these anti-Semites who form a significant part of his base. The
New York Times has criticized Paul for his failure to “convincingly repudiate
racist remarks that were published under his name for years – or the
enthusiastic support he is getting from racist groups,” including those that
espouse “anti-Semitism and far-Right paranoia.”

Even now, Paul continues
to accept contributions from Holocaust-deniers, from those who blame the Jews
for everything and from other bigots, thus lending some degree of legitimacy to
their hateful views.

When Nazi anti-Semitism began to achieve mainstream
legitimacy in Germany and Austria in the 1930s, it was not because Hitler,
Goebbels and Goering were espousing it. Their repulsive views had been known for
years. It was because non-Nazis – especially prominent academics, politicians
and artists – were refusing to condemn anti-Semitism and those who espoused
it.

It has been said that “all that is necessary for the triumph of evil
is that good men do nothing.” Leiter and Paul may or may not be good men,
but they are guilty of more than merely doing nothing. They are, by their
actions, helping to legitimate the oldest of bigotries. Shame on them!

One does not need to be a rocket scientist to
grasp the fudging the BLS has been doing every month for years now in
order to bring the unemployment rate lower: the BLS constantly lowers
the labor force participation rate as more and more people "drop out" of
the labor force for one reason or another.

While there is some floating
speculation that this is due to early retirement, this is completely
counterfactual when one also considers the overall rise in the general
civilian non institutional population. In order to back out this fudge
we are redoing an analysis we did first back in August 2010, which shows
what the real unemployment rate would be using a realistic labor force
participation rate. To get that we used the average rate since 1980, or
ever since the great moderation began. As it happens, this long-term
average is 65.8% (chart 1). We then apply this participation rate to the
civilian noninstitutional population to get what an "implied" labor
force number is, and additionally calculate the implied unemployed using
this more realistic labor force. We then show the difference between
the reported and implied unemployed (chart 2). Finally, we calculate the
jobless rate using this new implied data.

It won't surprise
anyone that as of December, the real implied unemployment rate was 11.4%
(final chart) - basically where it has been ever since 2009 - and
at 2.9% delta to reported, represents the widest divergence to reported
data since the early 1980s. And because we know this will be the next
question, extending this
lunacy, America will officially have no unemployed, when the Labor Force
Participation rate hits 58.5%, which should be just before the
presidential election.

05 January 2012

I, Barack Hussein Obama, do solemnly swear (or affirm) that I will faithfully
execute the Office of President of the United States, and will to the
best of my ability, preserve, protect and defend the Constitution of the
United States."

- President Barack Hussein Obama, 20 January 2009

The President of the United States is the only elected official, who swears to the "best of [his or her] ability, preserve, protect and defend the Constitution of the
United States." The Vice-President, Senators and Congressmen merely swear to "support and defend the Constitution of the
United States against all enemies, foreign and domestic; that I will
bear true faith and allegiance to the same." Supreme Court Justices and other Federal court judges swear to "administer justice without respect to persons, and do equal right to the
poor and to the rich, and that I will faithfully and impartially
discharge and perform all the duties incumbent upon me as [justice/judge] under
the Constitution and laws of the United States." It is, therefore, instructive of the Founding Fathers belief that the President was to be held to a higher standard than all other office holders and, as the sole Executive of the Federal government with wide-ranging powers, be singly constrained by the Constitution and be made to expressly swear to preserve, protect and defend it. Unfortunately, President Obama has broken his oath and can not be trusted to preserve, protect and defend the document that enshrines the bedrock principles of this Republic.

Article One, section Five of the Constitution -- the Adjournments Clause -- states:

"Neither House, during the Session of Congress, shall, without the Consent of
the other, adjourn for more than three days,
nor to any other Place than that in which the two Houses shall be sitting."

On 4 January 2011, President Obama, he who swore an oath promising to the
best of his ability to preserve, protect and defend the Constitution of the
United States and broke it, installed Richard Cordray as the head of the vast new Consumer Financial Protection Bureau and 3 new members to the National Labour Relations Board. He claimed that he had the power to do this via "recess" appointments. This presents a problem for President Obama, he who swore an oath promising to the
best of his ability to preserve, protect and defend the Constitution of the
United States and broke it. The Senate is NOT actually in recess. The Constitution says the Senate cannot recess for more than 3 days without the House's permission. The House has not granted permission. As a result, both houses have been holding pro forma sessions out of constitutional necessity.

The House did NOT pass a Concurrent Resolution with the Senate to recess Congress precisely to block the president from making recess appointments,
just as the Democratic Congress did in November 2007 and for the rest
of George W Bush’s presidency. In both cases, members of the Senate
appeared every three days to gavel the Senate into “pro forma” session.
In fact, only the day before President Obama, he who swore an oath promising to the
best of his ability to preserve, protect and defend the Constitution of the
United States and broke it, acted, the Senate conducted a pro forma session, convening the second session of the 112th Congress. Moreover, no less than his most recent appointee to the Supreme Court, Elena Kagan, writing as his solicitor general
on 23 March 2010 to the clerk of the Supreme Court, averred that:

“...the
Senate may act to foreclose [recess appointments] by declining to recess
for more than two or three days at a time over a lengthy period.”

When you review the history of the Adjournments Clause, you will learn
that the intent of the Founding Fathers was
for the President to be able to make appointments when Congress was
out-of-town and not in a position to return quickly to advise and
consent to his nominations. Further, recesses lasted up to 9 months at a
time. That was in the day when there were no automobiles,
trains, or air travel. They chose 3 days because it was the length of
time that it took a quorum to return to Washington. Not one of the
Founding Fathers believed that a recess was one day or an hour.

You might think that it isn't "fair" that a minority in Congress or a Congress in the hands of a party opposite that of the President of the United States should be able to stymy the "efforts of the benevolent leader to save the middle class," but that's exactly what the Constitution was written with in mind.

Under Article II, Section 2, Clause 2 of the Constitution, the
President has the power to fill vacancies -- Vacancies Clause -- that may happen during Senate
recesses. That power has been interpreted by scores of attorneys general
and their designees in the Department of Justice Office of Legal
Counsel for over 100 years to require an official, legal Senate
recess of at least 10–25 days of duration. (There are a few outlier
opinions, never sanctioned by the courts, that suggest a recess of six
to seven days might be enough—but never less than that.)

Since
the position has never been filled, it is not technically "vacant" and,
in fact, Frankendudd clearly states that the Secretary of the Treasury
will "perform the functions of the CFPB Director" until the person
nominated for the latter position is CONFIRMED BY THE SENATE. Thus, the
"vacancy " clause is irrelevant. Some disagree with me on this
particular issue, and that's fine. Nevertheless, the Vacancy Clause is still
irrelevant with regard to both Cordray and the NLRB nominees since none
became vacant during a recess as is required under Article II, Section
2, Clause 2.

"If you love wealth more than liberty, the tranquility of
servitude better than the animating contest of freedom,
depart from us in peace. We ask not your counsel nor your
arms. Crouch down and lick the hand that feeds you. May your
chains rest lightly upon you and may posterity forget that
you were our countrymen."

- Samuel Adams

According to the David B Rivkin, Jr. and Lee A Casey in their op-ed in the Wall Street Journal on 6 January 2012, the "traditional test, as articulated in a 1989 published opinion by the
Justice Department's own constitutional experts in the Office of Legal
Counsel, is whether the adjournment of the Senate is of 'such duration
that the Senate could not receive communications from the President or
participate as a body in making appointments.'" Today's Senate, which is
controlled by the president's own party, is fully capable of performing
both functions in accordance with its rules. Indeed, the Senate is so
much in session that on Dec. 23—three days after beginning its pro forma
session—it passed President Obama's current highest legislative
priority: a two-month payroll tax holiday, which the president promptly
signed."

As Professor Richard Epstein opines, “it is for the Senate and not for the President to determine whether
the Senate is in session." And second, as Professor John Yoo
noted yesterday, “it is up to the Senate to decide when it is in
session or not.” Consistent with the separation of powers, “the
President cannot decide the legitimacy of the activities of the Senate
any more than he could for the other branches, and vice versa.”

"To me, the threat to eliminate the filibuster on judicial nominations was just one more example of the Republicans changing the rules in the middle of the game."

- Barack Obama, The Audacity of Hope, 2006

The Daily Caller asked 51 Senate Democrats if the Senate was in session on 3 January 2011 the day that President Obama, he who swore an oath promising to the
best of his ability to preserve, protect and defend the Constitution of the
United States and broke it, made the "recess" appointments and only one, Senator Tom Carper of Delaware, supported the President's position that the Senate was, in fact, in recess and, therefore, the President was constitutionally permitted to make recess appointments. Only one.

In an attempting to justify the president’s violation of the Constitution and
90 years of legal precedent, spokesman Dan Pfeiffer claimed
that the president can exercise recess appointment powers because the
Senate’s pro forma sessions -- conducted since mid-December -- are
merely “a gimmick” during which “no Senate business is conducted and
instead one of two Senators simply gavel in and out of session in a
matter of seconds.”

Mr
Pfeiffer, are you now saying that the payroll tax extension, food
stamps, unemployment insurance, and the Medicare Doc Fix are all
"gimmicks"? I thought that they were "critical" to the "most
vulnerable" and the middle class?

Let's look at the Congressional Record to see some of the "gimmicks":

The Congressional Record for 23 December 2011 shows that Senate Majority Leader Harry Reid
specifically asked for unanimous consent for H.R. 3765 so “that if the
House passes and sends to the Senate a bill which is identical to the
text extension of the reduced payroll tax, unemployment insurance, TANF,
and the Medicare payment fix, the bill be considered read three times
and passed.”

In that pro forma session, Reid received unanimous consent
and the two-month extension of the payroll tax break that had caused
such a political commotion in Washington was considered read and passed
in the Senate after the House acted. That’s not a “gimmick.” That’s conducting business. That's legislating.

That same CR for the 12.23.11 pro forma session records a series of other business actions taken by the Senate. The President pro tempore
signed several enrolled bills. Other senators were designated as
members of a conference committee to negotiate with the House over
disagreements to H.R. 3630. The minority leader even made
appointments to the United States-China Economic and Security Review
Commission, pursuant to 22 U.S.C. § 7002.

Contrary to White House assertions, the Senate unquestionably conducted actual business during at least one of its supposedly pro forma sessions. This simple fact makes the actions of President Obama, he who swore an oath promising to the
best of his ability to preserve, protect and defend the Constitution of the
United States and broke it, even more indefencible.

In December, theCongressional Research Service said decades of congressional practise and DOJ opinions have backed the position that the Senate should be out of session for more than three days before the president can make a recess appointment. When President Obama, he who swore an oath promising to the
best of his ability to preserve, protect and defend the Constitution of the
United States and broke it, was in the Senate, Democrats held Bush to the three day minimum. In fact, it WAS the Democrats that created the "pro forma" rule with the then-Dean of the Senate, Robert Byrd, giving it his blessing.

The transcript from the New Process Steel v. National Labor Relations Board oral arguments before the Supreme Court show then-acting Solicitor General Neal Katyal referencing the three-day minimum during in which no recess appointment can be made and citing a Department of Justice brief issued in 1993 by Attorney General Janet Reno based on more than 100 years of precedent, rules, and tradition:

CHIEF JUSTICE ROBERTS: And the recess appointment power doesn't work why?

OBAMA'S SOLICITOR GENERAL MR. KATYAL: The -- the recess appointment power can work in -- in a recess. I think our office has opined the recess has to be longer than 3 days. And -- and so, it is potentially available to avert the future crisis that -- that could -- that could take place with respect to the board. If there are no other questions –

CHIEF JUSTICE ROBERTS: Thank you, counsel.

As a result, the Cordray and NLRB recess appointments are clearly unconstitutional.

Furthermore,
Dodd-Frank, hereinafter referred to as Frankendudd, SPECIFICALLY
REQUIRES that the Director of the CFPB be CONFIRMED by the Senate.

Section
1066 provides that the Secretary of the Treasury is authorised to
perform the functions of the CFPB under the subtitle transferring
authority to the CFPB from the other agencies “until the Director of the
Bureau is CONFIRMED BY THE SENATE in accordance with Section 1011.”

Section 1011 provides: “The Director shall be appointed by the President, by and with the advice and consent of the Senate.”

"In our constitutional system, presidents don't get to 'refuse to take no for an answer.'"

The illegality of the appointment will call into question all of the
agency's actions. Defence counsel will have a field day in the future.
If Cordray & Co. go after a payday loan outfit, for example, the
company can get the action dismissed because Cordray is not the lawful
head of the agency.

The reason that Republicans in the Senate have held up the Cordray hearings is because they want to get the White House to agree to some changes that would give Congress oversight over the ConsumerFinancial Protection Bureau. As it stands, the bureau can begin regulating every aspect of our financial lives without any congressional oversight and is not answerable in any way to voters. The CFPB would have
unaccountable and virtually unlimited power to regulate an enormous
variety of non-bank financial transactions, ranging from how consumers
can pay bills over the phone to what kind of paperwork developers must
give to prospective homebuyers. Further, far from being a protection wall between consumers and the banks, the CFPB is within the Federal Reserve, which is the playground of Ben Bernanke and the Big Banks.

Richard Cordray is not some milquetoast appointment either. He is another radical, who believes that the Commerce Clause trumps everything else in the Constitution. He has argued that the courts, and he seems to agree, have held that any legislation, which has even "incidental effects on the economy," is a
"valid exercise of congressional authority" because of the commerce
clause." He is, of course, wrong on his assertion, which isn't unusual for anyone associated with this administration. The Court in United States v. Lopez, 514 U.S. 549 (1995), identified the three broad categories of activity that Congress could regulate under the Commerce Clause:

the channels of interstate commerce,

the instrumentalities of interstate commerce, or persons or things in interstate commerce,and

activities that substantially affect or substantially relate to interstate commerce.

Using these three categories, the Court struck down the Gun-Free School Zones Act of 1990 holding that possession of a gun near school is not an economic activity that has a substantial effect on interstate commerce. A law prohibiting guns near schools is a criminal statute that does not relate to commerce or any sort of economic activity. Lopez was not the only case in which the Court overturned Federal laws that were either economic INactivity in fact or unsubstantial in nature. In United States v. Morrison, 529 U.S. 598 (2000), the Court overturned the Violence Against Women Act of 1994, 42 U.S.C. § 13981, and ruled it was
unconstitutional as exceeding congressional power under the Commerce
Clause and under section 5 of the Fourteenth Amendment to the
Constitution. In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 holding that they abridged "the freedom to engage in a substantial amount of lawful speech."

"History, in general, only informs us what
bad government is."

- Thomas
Jefferson

Pursuant to Cordray's argument, your critique of a restaurant online might hurt its business; thus, your First Amendment rights can be regulated by government via the Commerce Clause. Your guns could scare off people from coming into your neighbourhood, which could impact the economy; therefore, your Second Amendment rights can be regulated.

Republicans never obstructed the two Democrats President Obama, he who swore an oath promising to the
best of his ability to preserve, protect and defend the Constitution of the
United States and broke it, installed on the
NLRB. They couldn’t have even if they wanted to; President Obama, he who swore an oath promising to the
best of his ability to preserve, protect and defend the Constitution of the
United States and broke it, only named them
as nominees on December 15, less than three weeks before he made the
move. The nominees never even filed the normal paperwork with the Senate Health,
Education, Labor, & Pensions (HELP) Committee. They didn’t undergo
background checks. They didn’t submit questionnaires. They didn’t meet
with a single Senate Republican.

As Minority Leader Mitch McConnell said, “Because the
President waited to nominate Sharon Block and Richard Griffin until just
two days before the Senate was scheduled to adjourn last month, neither
has undergone a single confirmation hearing or a single day of debate
by the representatives of the American people. Congress has a
constitutional duty to examine presidential nominees, a responsibility
that serves as a check on executive power. But what the President did
today sets a terrible precedent that could allow any future President to
completely cut the Senate out of the confirmation process, appointing
his nominees immediately after sending their names up to Congress.”

Congress has five options to respond to this power grab by the executive branch of the federal government:

1. Filibuster all nominations and deny unanimous consent to the waiver
of any rule with regard to nominations, as Senator Robert C Byrd did in 1985 over a lesser recess appointment issue, until these four unconstitutional
appointments are rescinded.

2. Condition passage of all must-pass legislation on the rescission of these unconstitutional appointments.

3. Conduct vigorous oversight to demand the production of witnesses and
documents supporting the president’s legal theory justifying this
unprecedented power grab.

4. Make major cuts in funding of the NLRB and the Department of the Treasury where the CFPB was placed by its authorizing statute.

5. Pursue legal remedies to get those unconstitutionally appointed officials out of office.

As for Attorney General Ed Meese and a former Office of Legal Counsel lawyer, Todd Gaziano, point out in their editorialin the Washington Post, "if Congress does not resist, the injury is not just to its branch
but ultimately to the people.” Separation of powers exists to protect
liberty and to protect the rights of democratically elected senators to
participate in the nominations process. This is a “tyrannical usurpation
of power” by President Obama, he who swore an oath promising to the
best of his ability to preserve, protect and defend the Constitution of the
United States and broke it, and Congress must act quickly to restore
an appropriate balance between the executive and legislative branches of
the federal government.

"The president and anyone else may object that the Senate is
conducting “pro forma” sessions, but that does not render them
constitutionally meaningless, as some have argued. In fact, the Senate
did pass a bill during a supposedly “pro forma” session on Dec. 23, a
matter the White House took notice of since the president signed the
bill into law. The president cannot pick and choose when he deems a
Senate session to be “real.”

"It does not matter one whit that most
members of Congress are out of town and allow business to be conducted
by their agents under unanimous consent procedures, because ending a
session of Congress requires the passage of a formal resolution, which
never occurred and could not have occurred without the consent of the
House."

- Attorney General Ed Meese and a former Office of Legal Counsel lawyer, Todd Gaziano

Added to all of this is the fact that it was the Democrats -- with then-Senator Obama as one of the principal architects -- that came up with the idea of using pro forma sessions to thwart the ability of President George W Bush to make recess appointments. According to the Congressional Research Service, "the Senate pro forma
session practice appears to have achieved its stated intent: President
Bush made no recess appointments between the initial pro forma sessions
in November 2007 and the end of his presidency." When Obama was elected pro forma sessions stopped, but after the 2010 elections, they resumed.

THEN-SEN. BARACK OBAMA (D-IL): Recess appointments ‘the
wrong thing to do.’ “‘It’s the wrong thing to do. John Bolton is the
wrong person for the job,’ said Sen. Barack Obama, D-Ill., a member of
Foreign Relations Committee.” (“Officials: White House To Bypass
Congress For Bolton Nomination,” The Associated Press, 7/30/05)

OBAMA: A recess appointee is ‘damaged goods… we will have less
credibility.’ “To some degree, he’s damaged goods… somebody who couldn’t
get through a nomination in the Senate. And I think that that means
that we will have less credibility…” (“Bush Sends Bolton To U.N.” The
State Journal-Register [Springfield, IL], 8/2/05)

SEN. HARRY REID (D-NV): ‘An end run around the Senate and the
Constitution.’ “I will keep the Senate in pro forma session to block the
President from doing an end run around the Senate and the Constitution
with his controversial nominations.” (Sen. Reid, Congressional Record,
S.15980, 12/19/07)

REID: ‘They are mischievous.’ “Also, understand this: We have had a
difficult problem with the President now for some time. We don’t let
him have recess appointments because they are mischievous, and unless we
have an agreement before the recess, there will be no recess. We will
meet every third day pro forma, as we have done during the last series
of breaks.” (Sen. Reid, Congressional Record, S.7558, 7/28/08)

REID: Recess appointments an ‘abuse of power.’ “Senate Minority
Leader Harry Reid (D-Nev.) denounced the appointment as ‘the latest
abuse of power by the Bush administration,’ adding that Bolton would
arrive at the UN ‘with a cloud hanging over his head’ because he could
not win confirmation.” (“Bush Puts Bolton In UN Post,” Chicago Tribune,
8/2/05)

REID: A recess appointee will have ‘a cloud hanging over his head.’
“Senate Minority Leader Harry Reid (D-Nev.) denounced the appointment
as ‘the latest abuse of power by the Bush administration,’ adding that
Bolton would arrive at the UN ‘with a cloud hanging over his head’
because he could not win confirmation.” (“Bush Puts Bolton In UN Post,”
Chicago Tribune, 8/2/05)

SEN. DICK DURBIN (D-IL): ‘Troubling.’ “When you have an appointment
that is this critical and this sensitive, and the president basically
says he’s going to ignore the will of the senate and push someone
through, it really is troubling.” (“Bush Sends Bolton To U.N.” The State
Journal-Register [Springfield, IL], 8/2/05)

DURBIN: ‘Could easily be unconstitutional.’ “I agree with Senator
Kennedy that Mr. Pryor’s recess appointment, which occurred during a
brief recess of Congress, could easily be unconstitutional. It was
certainly confrontational. Recess appointments lack the permanence and
independence contemplated by the Framers of the Constitution.” (Sen.
Durbin, Congressional Record, S.6253, 6/9/05)

SEN. JOHN KERRY (D-MA): Recess appointments an ‘abuse [of] the power
of the presidency.’ “‘It’s sad but not surprising that this White House
would abuse the power of the presidency to reward a donor over the
objections of the Senate,’ Kerry said in a statement …” (“Recess
Appointments Granted to ‘Swift Boat’ Donor, 2 Other Nominees,” The
Washington Post, 4/5/07)

SEN. FRANK LAUTENBERG (D-NJ): “…bends the rules and circumvents the
will of Congress.” (“President Sends Bolton to U.N.; Bypasses Senate,”
The New York Times, 8/2/05)

SEN. MAX BAUCUS (D-MT): “Senate confirmation of presidential
appointees is an essential process prescribed by the Constitution that
serves as a check on executive power and protects Montanans and all
Americans by ensuring that crucial questions are asked of the nominee —
and answered…” (“Dem Baucus Joins GOP In Blasting Obama CMS Recess
Appointment,” The Hill, 7/7/10)

“I refuse to take ‘No’ for an answer. I’ve said before
that I will continue to look for every opportunity to work with Congress
to move this country forward. But when Congress refuses to act in a way
that hurts our economy and puts people at risk, I have an obligation as
president to do what I can without them.”

- President Barack Obama, 5 January 2012

Well,
guess what, Barack, you aren't a king nor a dictator. Presidents have
been getting told "No" throughout the history of this country. You
don't get to decide when the Constitution is relevant and when it must
be thrown aside to "move this country forward." Some of us look to the
Constitution precisely to prevent you from moving the country "forward"
in the backwards direction that you would like to take it with your
Luddite and Leveller obsession.

Obamabots,
I hope that you like the precedent. Imagine a future Mr President
Generic Republican nominating Mark Levin for the Supreme Court and, two weeks
later while Congress is off for the weekend, appointing him to the Court
using the recess appointment clause in the Constitution, which would be
completely unconstitutional.

Number of "recess" appointments made by Washington to Carter when the Senate WAS NOT IN RECESS:

ZERO

Number # of "recess" appointments made by Reagan when the Senate WAS NOT IN RECESS:
ZERO

Number of "recess" appointments made by Bush I when the Senate WAS NOT IN RECESS:
ZERO

Number of "recess" appointments made by Clinton when the Senate WAS NOT IN RECESS:
ZERO

Number of "recess" appointments made by Bush II when the Senate WAS NOT IN RECESS:
ZERO
Number of "recess" appointments made by Obama when the Senate WAS NOT IN RECESS:
FOUR AND COUNTING

I don't want to hear any whining
from you assholes then. You have no regard for the Constitution. "The ends
justify the means" is your entire life.

You people are PATHETIC. You screamed bloody murder about the Patriot
Act, which I opposed, but you say nothing when President Obama, he who swore an oath promising to the
best of his ability to preserve, protect and defend the Constitution of the
United States and broke it, starts
assassinating American citizens and demands to be able to detain
Americans indefinitely without trial. You screamed bloody murder about
the AUMFs, but are as quiet as church mice when President Obama, he who swore an oath promising to the
best of his ability to preserve, protect and defend the Constitution of the
United States and broke it, starts bombing
Libya. You screamed bloody murder about Bush firing 8 US Attorneys, who serve at the pleasure of the President, but nothing when Bill Clinton fired 93 US Attorneys or an inspector general without properly notifying Congress. You screamed bloody murder about deficits and debt, but say
NOTHING when President Obama, he who swore an oath promising to the
best of his ability to preserve, protect and defend the Constitution of the
United States and broke it, is on track to spend more in his first term than Bush
did in 8 years. You called for the heads of Alberto Gonzales and Karl Rove, but say nothing about Eric Holder, who is responsible for the deaths of two Federal agents, several Americans, and hundreds of Mexicans, tolerates perjury by staff attorneys, and is only concerned about the rights of "his people." You stupid fucks were cheering when you were encouraging President Obama, he who swore an oath promising to the
best of his ability to preserve, protect and defend the Constitution of the
United States and broke it, to use the Fourteenth Amendment to go around Congress to increase the debt limit even though it expressly leaves that right to CONGRESS ONLY, to-wit:

Section 4. The validity of the public debt of the United
States, authorized by law, including debts incurred for payment of
pensions and bounties for services in suppressing insurrection or
rebellion, shall not be questioned. But neither the United States nor
any State shall assume or pay any debt or obligation incurred in aid of
insurrection or rebellion against the United States, or any claim for
the loss or emancipation of any slave; but all such debts, obligations
and claims shall be held illegal and void.

Section 5. The CONGRESS shall have power to enforce, by appropriate legislation, the provisions of this article.

The Constitution protects ALL of US from the government regardless of party. Its shredding should not be a cause for celebration. This isn't about Republicans and Democrats. If anyone thinks this is a fabulous thing because it will help President Obama, he who swore an oath promising to the
best of his ability to preserve, protect and defend the Constitution of the
United States and broke it, today and/or President Future Republican, s/he who will swear an oath promising to the
best of her/his ability to preserve, protect and defend the Constitution of the
United States and and break it, then, as a libertarian, I say a pox on both your houses.

"The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."

- Thomas Jefferson

____________________________________________________

A few readers have emailed me to say that
Teddy Roosevelt made 160 recess appointments between gavels in 1903.
That's true. He made the recesses between the end of the 57th Congress
and the beginning of the 58th Congress. The current Congress, the 112th, runs from January 2011 until January 2013. Roosevelt
made his recess appointment between different Congresses. Obama
hasn’t. Big difference.